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April 5 — Challenges
to agency fees collected by public employee unions from nonmembers
will continue despite the U.S. Supreme Court's leaving intact a
legal precedent allowing the practice, law professors said.

The court's one-sentence order March 29 reflecting a
4-4 tie in Friedrichs v. California
Teachers Ass'n was a direct consequence of the death of
Justice Antonin Scalia, who presumably might have furnished the
fifth vote sought in the National Right to Work Legal Defense
Foundation's litigation drive to overturn agency fees on First
Amendment grounds, the legal scholars said.

The Friedrichs order
effectively upheld the U.S. Court of Appeals for the Ninth
Circuit's decision that, under Abood v.
Detroit Bd. of Education, 431 U.S. 209, 95 LRRM 2411 (1977),
the California Teachers Association and the state can collect “fair
share” fees from nonmember teachers to cover collective bargaining
costs (60 DLR AA-1, 3/29/16).

What comes next depends on how Scalia's seat is
filled, said Ruben J. Garcia, a professor at the University of
Nevada, Las Vegas law school.

“It all rides on who that ninth justice is,” he told
an April 4 plenary session at a Hunter College annual conference in
New York on collective bargaining in higher education. “The
challenges will continue.”

Wait for Fifth Vote

Much as they did with Friedrichs, he said, right-to-work groups will wait
until they see five justices as being favorable to their
position.

The ultimate goal of their “decades-long campaign”
seems to be “constitutionalizing” the right-to-work principle in
the private sector as well as in the public sector, Garcia
maintained. The cases, he said, “will continue to percolate in the
lower courts while we await the ninth justice.”

“Unfortunately, there will be more money spent in
litigation, rather than working toward solutions at the bargaining
table,” Garcia said.

Scalia had shown “somewhat conflicting impulses”
that had made him “the justice to watch” in the court's 2014
decision in Harris v. Quinn, 134 S.
Ct. 2618, 199 LRRM 3741 (U.S. 2014) and, until his death, in the
Friedrichs case, said Charlotte Garden, an assistant professor at
Seattle University Law School.

In Harris , the court
said that personal care assistants paid by the state of Illinois
were not “full-fledged” public employees who could be compelled to
pay union dues or fees to a union recognized by the state as their
bargaining agent (125 DLR AA-1, 6/30/14).

Scalia Role

On one hand, Scalia had defended the
constitutionality of union fees and the court's Abood decision, Garden said.

But on the other hand, he'd also played a role in
making it seem like an opportune time to challenge agency fees, she
said, quoting his 2007 suggestion that “it is undeniably unusual
for a government agency to give a private entity the power, in
essence, to tax government employees.”

In a “case to watch” in the aftermath of
Harris, Garden said, the right-to-work
group is seeking to represent a class of 80,000 Illinois home care
workers who'd paid agency fees totaling more than $30 million since
April 2008. Class certification is pending in the case, which is
before the U.S. District Court for the Northern District of
Illinois.

The Illinois case, part of “a new generation of
challenges to public-sector union structures,” is important as an
indicator of whether union-represented nonmembers can get back fees
they paid before the Harris case was decided, Garden said.

Teeing Up for Next Round

The partial public employee cases, she said, “are
just teeing up the next round of cases, which would involve
traditional public employees and eventually maybe even private
employees.”

Other cases seek to make it easier to opt out of
paying non-mandatory union dues or fees, or like Friedrichs, argue that mandatory union fees are
unconstitutional in the public sector, Garden said.

Others maintain that exclusive representation of
partial public employees is unconstitutional, seek to limit the
ways unions persuade workers to become members, or argue that the
First Amendment is implicated in private-sector union relationships
under the Railway Labor Act, she said.

“There's no shortage of cases,” she said.

With the sole exception of some cases seeking to
tinker with opt-out procedures, however, “these cases have been
largely unsuccessful so far,” Garden said.

“I wouldn't expect that trend to change,” she
continued. “These cases were being queued up for a Supreme Court
with five conservative justices willing to discard precedent in
order to establish employee speech rights in the context of
public-sector representation.”

She said she'd have to amend her opinion, though, in
the event of a “President Trump” or the appointment of a justice by
any other Republican president.

Unions Playing Offense?

Unions have been playing defense in constitutional
challenges to membership dues and non-member fees, but in the new
landscape created by Scalia's death they should consider going on
offense with affirmative constitutional arguments, said Cynthia
Estlund, a New York University Law School professor.

After Friedrichs,
advocates will continue their campaign to abolish agency fees one
state at a time through right-to-work laws, which now cover more
than half the states, Estlund said. Those laws, she said, “create a
free rider problem that destabilizes the foundations of the
exclusivity-based system of collective bargaining” set by the
National Labor Relations Act.

A narrowed reading of the act's Section 14(b) would
result in preemption of broad right-to-work laws that prohibit all
mandatory fees, including the fair-share fee, she said.

To support the theory, Estlund pointed to a dissent
by Judge Diane P. Wood of the U.S. Court of Appeals for the Seventh
Circuit in Sweeney v. Pence (2014 BL
240711, 7th Cir., 13-1264, 9/2/14). In a 2-1 decision in that case,
the court rejected a union challenge to an Indiana right-to-work
law (169 DLR AA-1, 9/2/14).

In dissent, Wood said the majority's decision is
“either incorrect” or “it lays bare an unconstitutional
confiscation perpetuated by our current system of labor law.”
Wood's dissent is “a plausible, learned reading” of the act and
offers the affirmative litigation strategy of casting right-to-work
laws that bar fair-share fees as “an unconstitutional taking
without due process,” Estlund said.

Those laws, she said, force unions to “fork over
members’ dues to represent nonmembers,” creating a “corrosive
free-rider problem.”

View Supported by Others

Wood's dissent drew the support of four other
appeals court judges in backing a motion for a rehearing en banc,
which failed in a 5-5 split in January 2015, Estlund said.

The reasoning, she said, also played a role in
decisions blocking a pair of Idaho right-to-work laws (179 DLR
AA-1, 9/16/15).

“The First Amendment hasn't been a friend to unions
lately,” Estlund said. “In a post-Scalia world, barring a
Republican White House, the constitution could again become a
friend of unions.”

The conference was sponsored by the National Center
for the Study of Collective Bargaining in Higher Education and the
Professions at Hunter, which is part of the City University of New
York.

To contact the reporter on this story: John Herzfeld
in New York at jherzfeld@bna.com

To contact the editor responsible for this story:
Susan J. McGolrick at smcgolrick@bna.com

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